The opinion
Filed 12/13/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
HAROLD WINSTON, B323392
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV28021)
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gregory W. Alarcon, Judge. Reversed and
remanded with directions.
Law Office of Michael J. Curls, Michael J. Curls and
Nichelle D. Jordan for Plaintiff and Appellant.
Peterson, Bradford, Burkwitz, Gregorio, Burkwitz, and Su,
George E. Peterson and Gil Burkwitz for Defendant and
Respondent.
_________________________
INTRODUCTION
Harold Winston (Winston) sued his employer, the County of
Los Angeles (L.A. County), alleging race-based discrimination,
retaliation, and failure to maintain a discrimination free
environment under the California Fair Employment and Housing
Act (FEHA) (Gov. Code, § 12900 et seq.) and whistleblower
retaliation in violation of Labor Code section 1102.5.
While Winston’s case was pending, Labor Code1 section
1102.5 was amended, effective January 1, 2021, to add a
provision—subdivision (j)—authorizing courts to award
reasonable attorney fees to whistleblower plaintiffs who prevail
against their employer under section 1102.5.
After the jury found in Winston’s favor on his retaliation
claim under section 1102.5, Winston filed a motion for attorney
fees based on section 1102.5’s recently enacted subdivision (j).
The trial court denied the motion, ruling that the fee provision
does not apply to Winston’s case because it was not in effect in
2019 when the complaint was filed and because it found no
legislative intent supporting retroactive application.
We disagree with the trial court’s decision and reverse.
Case precedent establishes that a new statute authorizing an
award of attorney fees applies to actions pending on the statute’s
effective date. On remand we direct the trial court to determine,
in the first instance, the appropriateness and reasonableness of
the fee request.
1 Undesignated statutory references are to the Labor Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. Winston’s Complaint
Winston is “an African-American male” with “over 30 years
of service” with L.A. County. Winston works in the Department
of Treasurer and Tax Collector as the supervising deputy public
conservator administrator in the public administration branch.
On August 7, 2019, Winston filed a complaint against L.A.
County alleging five causes of action: 1) racial discrimination in
violation of FEHA (Gov. Code, § 12940, subd. (a)); 2) retaliation in
violation of FEHA (id., § 12940, subd. (h)); 3) retaliation in
violation of section 1102.5; 4) failure to maintain a discrimination
and harassment free environment in violation of FEHA (Gov.
Code, § 12940, subd. (k)); and 5) negligent hiring, supervision,
and retention. He sought damages, an injunction against future
discrimination and retaliation, imposition of periodic reporting
requirements, and reasonable attorney fees pursuant to
section 1102.5.
On July 20, 2021, the trial court heard and granted L.A.
County’s motion for summary judgment as to Winston’s fifth
cause of action for negligent hiring, supervision, and retention.
This left for the jury’s consideration Winston’s three FEHA
causes of action and the retaliation claim under section 1102.5.
Trial began on November 17, 2021. During trial and before
closing argument, Winston abandoned the first cause of action for
racial discrimination under FEHA.
On November 24, 2021, the jury returned a verdict on the
three causes of action submitted to them. It found in favor of
L.A. County and against Winston on the causes of action for
retaliation under FEHA and failure to prevent discrimination/
harassment under FEHA. The jury found in Winston’s favor on
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his cause of action for whistleblower retaliation under section
1102.5. It awarded him damages totaling $257,000.
II. Motion for Attorney Fees
On May 5, 2022, Winston filed a motion for attorney fees
and requested $1,854,465 as the prevailing party under section
1102.5 and the FEHA, both of which allow for an award of
attorney fees to prevailing parties. Winston argued section
1102.5 applies “because [his] case was still in action at the time
the provision became effective . . . on January 1, 2021.” He
argued “precedent makes clear [the statute] applies to any
actions that were still pending at the time that [Assembly Bill
No. 1947] went into effect.” The matter “did not go before a jury
until November 16, 2021, and was unquestionably still pending”
when the provision went into effect, “entitl[ing] [Winston] to an
award of attorney’s fees under . . . §1102.5.”
On May 23, 2022, L.A. County filed opposition and argued
the motion for attorney fees should be denied in its entirety
because there was no provision for recoverable attorney fees set
forth in section 1102.5 when the litigation was initiated and
because “there is no express legislative intent permitting
retroactive application of the fee provision.” L.A. County further
argued that Winston did not prevail on any of his FEHA claims
and therefore did not qualify as a prevailing party.
On May 27, 2022, Winston filed a reply in support of his
motion for fees. He argued that “a new statute authorizing an
award of attorney fees applies to actions not yet final at the time
the statute becomes effective.” He conceded to an error regarding
an attorney fee entry and corrected his fee request to $1,846,956.
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III. Trial Court’s Ruling
On June 6, 2022, the trial court heard argument on
Winston’s motion for attorney fees. The court took the matter
under submission.
On June 7, 2022, the trial court issued its ruling denying
the motion for attorney fees: “Plaintiff moves for attorney’s fees of
$1,843,465 based upon a jury verdict on Labor Code [s]ection
1102.5. This Labor Code did not include a fee provision at the
time this action was filed, on August 7, 2019. [Assembly Bill No.]
1947, which amended [section] 1102.5, authorizes courts to award
attorneys’ fees to whistleblowers who prevail against employers,
became effective on January 1, 2021. No legislative intent
demonstrating retroactive application has been presented to this
court. Without any showing of retroactive application, the
request for attorney’s fees is denied. [(Evangelatos v. Superior
Court (1988) 44 Cal.3d 1188, 1207; Civ. Code, § 3.)] Furthermore,
Plaintiff did not prevail on the FEHA claim, which would have, if
they had prevailed, provided a basis for an entitlement for
attorney fees.”
IV. Motion for Reconsideration
On June 8, 2022, Winston filed a motion for reconsideration
of the court’s order denying his motion. Winston cited as new law
Reyes v. Beneficial State Bank (2022) 76 Cal.App.5th 596 (Reyes)
for the proposition that absent legislative directive to the
contrary, courts generally apply newly enacted fees/costs statutes
to cases pending at the time of enactment.
On July 7, 2022, L.A. County filed its opposition, arguing
Winston’s motion for reconsideration was “procedurally defective”
and Reyes was not “new law” because it had been filed on March
5
22, 2022, before Winston filed his motion for attorney fees on May
5, 2022.
On July 20, 2022, the trial court denied Winston’s motion
for reconsideration. Judgment was entered that same date.
This appeal followed.
DISCUSSION
On appeal, Winston argues section 1102.5, subdivision (j)
applies to his case “because [his] case was still in action at the
time the provision became effective.” He contends the trial court
erroneously denied his motion based on “no legislative intent
demonstrating retroactive application of [the statute].” We agree
with Winston and reverse.
I. Standard of Review & Applicable Law
We review de novo whether a statute applies retroactively.
(Dragones v. Calkins (2024) 98 Cal.App.5th 1075, 1081
(Dragones).)
The law invoked here, section 1102.5, is “ ‘California’s
general whistleblower statute.’ ” (McVeigh v. Recology San
Francisco (2013) 213 Cal.App.4th 443, 468.) When Winston filed
this case, section 1102.5 did not include a one-way fee-shifting
provision “authoriz[ing] an award of attorney fees to a worker
who prevails on a claim of retaliation for blowing the whistle on
workplace legal violations.” (Sen. Com. On Judiciary, Exec.
Summary of Assem. Bill No. 1947 (2019–2020 Reg. Sess.) July 30,
2020, at p. 1.) The California Legislature amended the law by
passing Assembly Bill No. 1947, which allows discretionary
recovery of reasonable attorney fees to a prevailing whistleblower
plaintiff.
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Effective January 1, 2021, section 1102.5, subdivision (j)
provides: “The court is authorized to award reasonable attorney’s
fees to a plaintiff who brings a successful action for a violation of
these provisions.” (§ 1102.5, subd. (j).)
Under California law, the general rule is that absent a
clear, contrary indication of legislative intent, courts interpret
statutes to apply prospectively. (USS-Posco Industries v. Case
(2016) 244 Cal.App.4th 197, 217–218 (USS-Posco); Quarry v. Doe
I (2012) 53 Cal.4th 945, 955.) However, “the California Supreme
Court and many, many Courts of Appeal have treated legislation
affecting the recovery of costs, including attorney fees, as
addressing a ‘procedural’ matter that is ‘prospective’ in character
and thus not at odds with the general presumption against
retroactivity.” (USS-Posco, at p. 221.)
II. Analysis
Winston argues the provision in section 1102.5 authorizing
an award of attorney fees “regulates a procedural matter . . . and
thus should be applied to pending actions.” He cites numerous
cases holding that a new statute which authorizes an award of
attorney fees applies to actions not yet final at the time the
statute becomes effective. On the other hand, L.A. County argues
the trial court did not err in denying Winston’s motion for fees
because no provision for recovery of fees as set forth in section
1102.5 was in effect when the litigation was initiated. L.A.
County also argues there was “no express legislative intent
permitting retroactive application of the fee provision.”
Neither party points to a California decision directly
addressing the issue of whether section 1102.5, subdivision (j)
applies to cases pending at the amendment’s effective date and
we have found none. We have also reviewed the legislative
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history regarding Assembly Bill No. 1947 and it is silent as to
whether the new attorney fee provision should be prospectively or
retroactively applied.
We review the case law relied upon by the parties.
In Woodland Hills Residents Assn., Inc. v. City Council
(1979) 23 Cal.3d 917 (Woodland Hills), the Supreme Court held
that the newly enacted Code of Civil Procedure section 1021.5—
permitting an attorney fee award under a private attorney
general theory—applied to a case pending on appeal at the time
the legislative enactment took effect. (Woodland Hills, at
pp. 930–931.) The Woodland Hills decision rests on a long line of
cases holding that newly enacted attorney fee provisions apply to
cases pending in the trial court or on appeal “on the effective date
of the statutes.” (Id. at pp. 931–932.)
Since Woodland Hills, California courts have consistently
held that “statutory provisions that alter the recovery of attorney
fees are deemed procedural in nature and apply to pending
litigation.” (USS-Posco, supra, 244 Cal.App.4th at p. 201; see
American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton
(2002) 96 Cal.App.4th 1017, 1056–1057 [most recent version of
Code Civ. Proc., § 998, amended during appeal, governed award
of expert fees in case]; California Housing Finance Agency v. E.R.
Fairway Associates I (1995) 37 Cal.App.4th 1508, 1512–1513
[applying amended Health and Safety Code attorney fee
provision to pending case, where code was amended during trial
to provide for attorney fee award to the prevailing party]; Mir v.
Charter Suburban Hospital (1994) 27 Cal.App.4th 1471, 1477–
1478 [Bus. & Prof. Code, § 809.9, which took effect after trial
court judgment became final, allowed for award of fees incurred
both before and after effective date of statute]; ARA Living
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Centers-Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th
1556, 1559, 1562 [applying Welf. & Inst. Code, § 15657, amended
during trial court proceedings, to allow prevailing plaintiff to
obtain attorney’s fees in elder abuse cases]; Harbor View Hills
Community Assn. v. Torley (1992) 5 Cal.App.4th 343, 350
[holding new Civil Code attorney fee provision applies to cases
pending on appeal and rejecting contention that such application
would “deprive either party of a matured right”]; Estate of
Schuster (1984) 163 Cal.App.3d 337, 341 [applying revised
probate attorney fee provision to pending case and holding,
“Statutes authorizing attorneys’ fees are applicable to cases in
which an appeal is pending, even if only as to the attorney fee
issues, on the effective date of the statute.”].)
In Reyes, purchasers of a defective automobile who brought
action against the holder of the installment contract were
entitled to the benefit of a statute permitting purchasers to claim
attorney fees (see Civ. Code, § 1717), although the statute had
not taken effect when the trial court initially ruled on purchasers’
fee motion, because the statute was procedural in nature and
thus applied to pending litigation. (Reyes, supra, 76 Cal.App.5th
at pp. 601, 604.) The Reyes court held that “[a]bsent a legislative
directive to the contrary, California courts generally apply newly
enacted cost and fee statutes to cases pending at the time of
enactment. [Citation.] This is true even though the costs or fees
at issue were incurred prior to the effective date of the new
statute.” (Reyes, at p. 616.)
More recently, in Dragones, former boyfriend and girlfriend
sought domestic violence restraining orders against each other.
(Dragones, supra, 9 Cal.App.5th at p. 1078.) The trial court
granted former boyfriend’s request. (Id. at p. 1079.) “While this
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case was pending in the trial court, the Legislature repealed the
prior version of [Family Code] section 6344 and enacted a new
section 6344, effective January 1, 2023. The new statute makes
it easier for a prevailing petitioner to obtain fees, and harder for
a prevailing respondent to obtain fees.” (Ibid.) Former boyfriend
moved for and was granted attorney fees pursuant to Family
Code section 6344. (Dragones, at pp. 1078–1079.) Former
girlfriend appealed the order. (Id. at p. 1079.) On appeal, the
reviewing court held that “the current version of [Family Code]
section 6344 applies retroactively to all cases pending on its
effective date, including this case. . . . Additionally, attorney’s fee
statutes are procedural in nature, and a newly enacted attorney’s
fee statute applies to cases pending on its effective date.” (Ibid.)
Application of an amended attorney fee statute to a case
currently pending is termed “prospective” because “an attorney
fee statute is deemed to address a “ ‘ “procedural” matter that is
“prospective” in character and thus not at odds with the general
presumption against retroactivity.’ ” (Dragones, supra,
98 Cal.App.5th at p. 1085, fn. 3.) We thus hold section 1102.5,
subdivision (j) applies to matters pending on the amended
statute’s effective date, including Winston’s case.
L.A. County cites Evangelatos v. Superior Court, supra,
44 Cal.3d 1188 for the principle that courts will not apply a
statute retroactively “unless such be ‘the unequivocal and
inflexible import of the terms, and the manifest intention of the
legislature.’ ” While that is true, the statute does not expressly
specify and the legislative history and commentary regarding
Assembly Bill No. 1947 is silent as to whether application of the
amended statute was intended to be prospective or retroactive.
Further, the holding in Evangelatos neither negates or discounts
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the multitude of case precedent we discuss above that specifically
hold that a new or amended statute affecting attorney fees
applies to cases not yet final on the statute’s effective date.
L.A. County next argues that retroactive application of the
statute impacts its substantive rights because it did not have fair
notice that Winston would be able to recover fees at the time the
action was filed in 2019. As support, L.A. County cites to USS-
Posco, where the court commented that “a litigant suddenly
deprived of a potentially large fee award, or conversely facing
such an award, would view its rights and obligations as
substantially modified.” (USS-Posco, supra, 244 Cal.App.4th at
p. 218.) What L.A. County fails to mention is that the quoted
portion is specified as being “the view federal courts, including
the United States Supreme Court, have taken when considering
federal fee statutes.” (Ibid, italics added.) The “[California]
Supreme Court and the great majority of our lower appellate
courts have viewed the question of retroactivity of fee and cost
eligibility statutes differently than the federal courts.” (Id. at
p. 219.) Surveying both federal and California case law on the
retroactive application of statutes affecting attorney fees and
recovery of costs, the reviewing court concluded that per “ ‘the
doctrine of stare decisis,’ ” the holding in Woodland Hills controls
and found the amended attorney fee provision applied because
the case was pending when the statute was amended. (USS-
Posco, at p. 222.)
L.A. County next directs us to section 4 of the Labor Code,
which provides: “No action or proceeding commenced before this
code takes effect, and no right accrued, is affected by the
provisions of this code, but all procedures thereafter taken
therein shall conform to the provisions of this code so far as
11
possible.” (§ 4.) This, however, does not help L.A. County.
Numerous general statutory provisions are considered to codify
or relate to the general rule that statutes are interpreted to apply
prospectively unless legislative intent clearly indicates the
contrary. (See, e.g., Civ. Code, § 3 [“[n]o part of [this Code] is
retroactive, unless expressly so declared.”]; see also Code Civ.
Proc., § 3 [“[n]o part of [this code] is retroactive, unless expressly
so declared.”].) But this general rule and these statutes do not
address the question of whether a new or amended statute as
applied has a prospective or retroactive effect. As already
explained, “an attorney’s fee statute is deemed to address a
‘ “procedural” matter that is “prospective” in character and thus
not at odds with the general presumption against retroactivity.’ ”
(Dragones, supra, 98 Cal.App.5th at p. 1085, fn. 3.)
Finally, L.A. County cites to nonpublished federal cases,
Bahra v. County of San Bernardino (C.D.Cal. Sept. 7, 2022,
EDCV 16-1756 JGB (SPx)) 2022 U.S.Dist. Lexis 162519, and
Nikmanesh v. Wal-Mart Stores, Inc. (C.D.Cal. Feb. 25, 2022,
SACV 15-202 JGB (JCGx)) 2022 U.S.Dist. Lexis 109065, which
concluded that the plaintiff’s action preceded the provision’s
effective date and no authority supports the provision’s
retrospective application. First, those two cases are not
published and do not control. Second, the district court in
Nikmanesh reached its conclusion after plaintiff cited to “a
hodgepodge of authority” without any explanation to suggest
otherwise. (Nikmanesh, at p. *15, fn. 5.) In contrast, Winston
here identified ample support in California case law to support
his position. Third, as made clear in USS-Posco, federal law and
California law differ on this point. “Under California Supreme
Court precedent, statutory provisions that alter the recovery of
12
attorney fees are deemed procedural in nature and apply to
pending litigation.” (USS-Posco, supra, 244 Cal.App.4th at
p. 201.)
We conclude the statute authorizes an award of attorney
fees to Winston because his action was pending when section
1102.5, subdivision (j), became effective. For that reason, we
reverse. Because the trial court did not ascertain the
reasonableness of the fee request and had no occasion to exercise
its discretion on this issue, we remand with directions to the trial
court to determine in the first instance the appropriate fee
award. We express no opinion on the amount to be awarded.
DISPOSITION
The judgment is reversed. We remand with instructions to
the trial court to determine an appropriate attorney fee award.
Appellant is awarded costs on appeal.
CERTIFIED FOR PUBLICATION
STRATTON, P. J.
We concur:
GRIMES, J. WILEY, J.
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